My post on Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 has attracted many comments. Some readers are sympathetic to the Supreme Court of Canada. And, indeed, one may wonder what the practical effect is of standard-of-review discussions that sometimes border on the metaphysical. Should the Supreme Court of Canada not focus on resolving the case before it rather than dealing with broader administrative law issues?

Consider Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113. K was a failed refugee claimant. Failed refugee claimants may apply for a visa like anyone else. But they may not wish to return to their country of origin to do so. After K’s claim was denied, he sought permission from the Minister on humanitarian and compassionate grounds to file his visa application from inside Canada. Permission was refused.

At issue in this case was the legal framework for this decision. A new s. 25(1.3) of the Immigration and Refugee Protection Act provides that the Minister “may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee…but must consider elements related to the hardships that affect the foreign national”. What does this mean?

In Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, the Supreme Court of Canada held that deference is presumptively due to ministerial interpretations of immigration law.

But this case came before the Federal Court of Appeal as a “certified question”, a procedure that allows the Federal Court to state an important question of statutory interpretation to the Federal Court of Appeal. In these circumstances, deference would presumably be inapposite (or, at least, the argument for deference is must less obvious). Yet, as Stratas J.A. explained for the Federal Court of Appeal in Kanthasamy, Agraira, “appears to depart inexplicably” from settled law (at para. 30):

[32] This Court has consistently taken the view that where a certified question asks a question of statutory interpretation, this Court must provide the definitive interpretation without deferring to the administrative decision-maker. Then, this Court must assess whether there are grounds to set aside the outcome reached by the administrative decision-maker on the facts and the law…

[33] Until Agraira, the Supreme Court approached immigration matters in the same way…

[34] In Agraira, the Supreme Court conducted reasonableness review on the administrative decision-maker’s decision on the statutory interpretation issue, ignoring the fact that the case proceeded in this Court in response to a certified question from the Federal Court. It did not vet this Court’s answer to the stated question.

The Supreme Court’s failure to engage this issue in Agraira led to an obvious — and eminently avoidable — problem. Here is how Stratas J.A. decided to proceed:

[35] There is nothing in the Supreme Court’s reasons in Agraira to explain this apparent change in approach. For that reason, until some clarification from the Supreme Court is received, it is my view that this Court should continue to follow its practice of providing the definitive answer to a certified question on a point of statutory interpretation. In reaching that conclusion, I note that the Supreme Court in Agraira did not say or suggest that this Court’s practice was wrong.

Simply put, when the Supreme Court of Canada fails to consider important questions about the framework for judicial review, other courts have to do so, never sure quite how the Supreme Court would resolve the question if they put their minds to it. Broader issues matter not only to pointy-headed academics sitting in ivory towers but also to lower courts and litigants. Failing to resolve them may create uncertainty.

On the merits, s. 25(1.3) was held to require the following decision-making process:

[74] The role of the officer, then, is to consider the facts presented through a lens of hardship, not to undertake another section 96 or 97 risk assessment or substitute his decision for the Refugee Protection Division’s findings under sections 96 and 97. His task is not to perform the same assessment of risk as is conducted under sections 96 and 97. The officer is to look at facts relating to hardship, not factors relating to risk.

[75] Matters such as well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment – factors under sections 96 and 97 – may not be considered under subsection 25(1) by virtue of subsection 25(1.3) but the facts underlying those factors may nevertheless be relevant insofar as they relate to whether the applicant is directly and personally experiencing unusual and undeserved, or disproportionate hardship.